Surah 2:178-193: the common law of the Qur’an begins

The next section begins Surah 2’s Islamic nation-building theme in earnest. Many religious books contain laws, such as kosher laws and general prohibitions on murder and theft and the life, but the Qur’an goes to a level of detail and “practicality” far beyond the Bible. I put “practicality” in scare-quotes because some of the legal recommendations made in this section are in fact wildly impractical and of dubious morality; I mean to say that they are procedural, that they describe actual courtroom practices instead of just laying out broad normative moral commands.

As I have said, this level of detail is necessary because of the social and political realities of the time in which Surah 2 was written. The Medinan Period, the time that Muhammed spent in Medina (Yathrib) and during which about half of the chapters of the Qur’an were written, was a time of political intrigue and turmoil in the Arabian peninsula. I’ve written already about the complex interplay of theological and even military factors in the relationship between Muhammed’s followers and the Christians, Jews, and other religious groups that lived together in Medina.

Muhammed’s work in this period is less like the life of Jesus and more like the life of Moses. Where Jesus created a millenarian religious sect that had very little original social agenda beyond preparing for what they believed was the impending apocalypse, Moses had the more difficult job of building a new permanent society out of more or less nothing. (This is not advocacy for the historical accuracy of the received biographies or even the existence of Jesus or Moses, this is summary of the stories as I understand them.) Jesus built a community; Moses built a nation. Muhammed has practical realities to deal with as an important contemporary religious leader, and that is why we see the laws we see in this section.

In fact, Muhammed’s role is so important politically in this period that he wrote an entire new constitution for Medina. It is a question of legitimate academic disagreement whether this part, or any part, of surah 2 predates or postdates the Constitution of Mecca. As you read below, compare and contrast those rules with that Constitution and decide for yourself.

Here is Yusuf Ali’s text with my commentary, with the verses I feel of sufficient moral value to preserve for ultimate inclusion in this blog’s end product, the Jefferson Qur’an:

178. O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.179. In the Law of Equality there is (saving of) Life to you, o ye men of understanding; that ye may restrain yourselves.

This is an interesting and easily-misinterpreted commandment. At least one intreped Qur’an-crawler has mistaken it for a command for freemen, slaves, and women to murder each other.

At least one other source provides the far more useful translation of “retribution” in place of Yusuf Ali’s more flowery “the law of equality.” The savvy reader will see a direct echo to the Code of Hammurabi’s “an eye for an eye.” (Note that this source uses an alternate numbering scheme for the verses of the Qur’an, which are not consistent in the way the different versions of the Bible are.)

While I do not much care for this “law of equality” in murder. Death for death strikes me of a very easy way to deprive one of the power to say that murder is wrong. Death for death means that killing is not wrong, it is merely the intent that matters: that there is nothing of particular consequence about the end results, since both murder and lawful execution produce a corpse out of one of your countrymen, it is merely that one who executes criminals and one who murders are of different legal permissions at the time they do so. Even if we accept the disquieting implication of the death penalty that the sole determinant of moral wrongness under such a system is whether or not a court of law (even a very competent court) has ordered it or not, the prescription of death is incompatible with the legal regimes of many of the most civilized states and nations today.

But on the other hand, the “the law of equality” actually provides and important limiting principles that would be of some use for a lot of the worst parts of Islamic society today (and everybody else’s really). If there is a murder done against your people, the proper response is execution of the murderer; equality between the victim and the crime. Disproportionate devastation of entire societies in response to the misdeeds of a small number of that society’s members has become something of a fad for some nations today – a one-for-one exchange would actually be a step in the right direction for such nations. But I digress.

Other translations also render “remission” as “mercy” in 2:178, another merciful clarification. The sentiment here is that, if the collateral victims of murder such as the family show mercy, the victim should receive some leniency. The potential legal effect of the perpetrator’s contrition is not mentioned.

180. It is prescribed, when death approaches any of you, if he leave any goods that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the Allah.fearing.181. If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows (All things).182. But if anyone fears partiality or wrong-doing on the part of the testator, and makes peace between (The parties concerned), there is no wrong in him: For Allah is Oft-forgiving, Most Merciful.

Yet more practicalities: the common law of wills and trusts for Muslims. Muslims are required to make bequests to their children and parents, to be faithful to last wishes, and 2:182 more or less demands the creation of a probate and family court to resolve differences regarding wills. That’s all fine, and not entirely unlike the Anglo-Saxon common law of wills and trusts, and least where the law of intestacy (death without a good will) is concerned. Transfers of property to the next family generation below yours that has living members is a default rule in most versions of the common law of intestacy, with parents being second in line in many cases, and everyone is familiar with the monarchical rule that the eldest son is automatically the sole inheritor unless the deceased makes a contrary affirmation in a proper will.

The only difference is that the Qur’an does not act as a default rule in the way that the Anglo-Saxon common law of intestacy does, it is a moral commandment. A literal reading of 2:180 actually requires a Muslim to make a gift to their dead parents if such is the case. I much prefer the massive complexity of Anglo-Saxon common law (me from my second year of law school is having a seizure or a stiff drink just at the thought).

183. O ye who believe! Fasting is prescribed to you as it was prescribed to those before you, that ye may (learn) self-restraint,-184. (Fasting) for a fixed number of days; but if any of you is ill, or on a journey, the prescribed number (Should be made up) from days later. For those who can do it (With hardship), is a ransom, the feeding of one that is indigent. But he that will give more, of his own free will,- it is better for him. And it is better for you that ye fast, if ye only knew.185. Ramadhan is the (month) in which was sent down the Qur’an, as a guide to mankind, also clear (Signs) for guidance and judgment (Between right and wrong). So every one of you who is present (at his home) during that month should spend it in fasting, but if any one is ill, or on a journey, the prescribed period (Should be made up) by days later. Allah intends every facility for you; He does not want to put to difficulties. (He wants you) to complete the prescribed period, and to glorify Him in that He has guided you; and perchance ye shall be grateful.

Back to religious laws – sort of. Even though 2:184 begins with a religious commandment, it makes much more concessions to context than a lot of other religious texts generally do. The Ten Commandments do not say, “covet not thy neighbor… unless her possessions are really, really cool;” they are more or less unconditional. 2:184, however, requires fasting and charity… unless you’re sick and can’t afford it. It’s a step in the right direction, and is certainly practical enough in the context of the man Muhammed dreaming of a society where everyone should be reasonably expected to actually follow the rules, which is a lot easier when those rules brook contextual complication.

186. When My servants ask thee concerning Me, I am indeed close (to them): I listen to the prayer of every suppliant when he calleth on Me: Let them also, with a will, Listen to My call, and believe in Me: That they may walk in the right way.187. Permitted to you, on the night of the fasts, is the approach to your wives. They are your garments and ye are their garments. Allah knoweth what ye used to do secretly among yourselves; but He turned to you and forgave you; so now associate with them, and seek what Allah Hath ordained for you, and eat and drink, until the white thread of dawn appear to you distinct from its black thread; then complete your fast Till the night appears; but do not associate with your wives while ye are in retreat in the mosques. Those are Limits (set by) Allah. Approach not nigh thereto. Thus doth Allah make clear His Signs to men: that they may learn self-restraint.

Regulations for the Ramadan fast: you can have sex during the night, but no afternoon delights while you fast. Clearly the intent here is to represent the Ramadan fast as part of a constellation of self-denials instead of just a literal fast. I have no particular use for Ramadan, but I do like the poetry of “they are your garments and ye are their garments.”

188. And do not eat up your property among yourselves for vanities, nor use it as bait for the judges, with intent that ye may eat up wrongfully and knowingly a little of (other) people’s property.

A moral prohibition against profligacy, and a legal prohibition on judicial graft. It is puzzling why 2:188 would only specifically prohibit bribery of judges to prevent theft, unjust enrichment, or inequitable windfalls, but that’s what the verse says on a literal reading. That is to say, it is woefully inadequate, but Muhammed is trying.

189. They ask thee concerning the New Moons. Say: They are but signs to mark fixed periods of time in (the affairs of) men, and for Pilgrimage. It is no virtue if ye enter your houses from the back: It is virtue if ye fear Allah. Enter houses through the proper doors: And fear Allah. That ye may prosper.

Ramadhan again. As I’ve already discussed, Muhammed’s new religion is more syncretic than its most stalwart will admit. It mixes Judaism, pre-Islamic Arabic religions, Christian liturgy, and all manner of other ideas and theologies together, and has firm historical antecedents for much of its most important themes and tropes. Muhammed wants to keep the ancient sanctity of the cycles of the moon, which is of sufficient significance in the human psyche that it occurs in religions around the world that could never have encountered each other, but to deprive it of its “pagan” importance. Yes the New Moon is important, says Muhammed, but only because it times Ramadan and the Hajj (the trip to Mecca Muslims are supposed to make at least once in their lives if they can afford it).

190. Fight in the cause of Allah those who fight you, but do not transgress limits; for Allah loveth not transgressors.191. And slay them wherever ye catch them, and turn them out from where they have Turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque, unless they (first) fight you there; but if they fight you, slay them. Such is the reward of those who suppress faith.192. But if they cease, Allah is Oft-forgiving, Most Merciful.193. And fight them on until there is no more Tumult or oppression, and there prevail justice and faith in Allah. but if they cease, Let there be no hostility except to those who practise oppression.

This is a primer on international law and the laws of war for Muslims. I am dying to know exactly what “limits” Muhammed had in mind; there is no academic theory that I know of holding that some specific incident or contemporary practice would have inspired this line (possibly Muhammed’s treatment of enemy prisoners after the Battle of Badr but that is a guess). 2:191 is a macro-scale version of the “Law of Equality” discussed in verses 178-179 except that it does recognize the contrition of the aggressor as having some significance (instead of the family of the victim).

There is some good material in this section. The chopped-up parts of verses that I will preserve in the final Jefferson Qur’an are:

2:180 When death approaches any of you, if you leave any goods, you should make a bequest to parents and next of kin, according to reasonable usage.
2:181 If anyone changes the bequest after hearing it, the guilt shall be on those who make the change.
2:182 But if anyone fears partiality or wrong-doing on the part of the testator, and makes peace between the parties concerned, there is no wrong in him.
2:190 Fight those who fight you, but do not transgress limits.

“Should” is a sufficient word in 2:180 to maintain a worthy moral prescription without straightjacketing people into giving their money to parents they don’t like or bratty nephews and nieces. 2:181-182 is an unequivocally reasonable command not to mess with peoples’ final wills and testaments. I kept only as much of 2:190 as needed to preserve the also perfectly reasonable order that one should fight a war in self-defense, but that there are limits beyond an eye for an eye, especially when one is talking about conflict on an international scale.